Michigan Criminal Defense Lawyer Blog
As a Michigan criminal and DUI lawyer, the whole notion of “probation” fills a good part of each of my workdays. This article will concentrate on what happens when things don’t go as planned, and you wind up facing a probation violation. To frame our discussion, we must remember that at its most basic, probation is an alternative to incarceration. Sometimes, when a person hires in at a company, he or she is placed on “probation” for the first 90 days; in that case, “probation” is an alternative to being unemployed. Back in the judicial world, being put on probation is seen as being given a chance to show that you can follow orders, stay out of trouble, and otherwise be trusted. When it is alleged that you somehow violated probation, the perception flips to your being seen as unable to follow orders, incapable of staying out of trouble, and not being trustworthy. If it is determined that you did, in fact, violate your probation, the Judge must decide what to do, which typically means how to punish you further. The biggest threat within that concept of “punishment” is, of course, getting locked up. And that is precisely what you hire a lawyer to avoid.
There are only 2 possible answers to the charge that you have violated some provision of your probation order: Either you did, or you did not. Thus, if you have tested positive for alcohol, the bottom line is that you either drank or not. This does not include that incredibly large number of people who, after a positive alcohol test, will claim that they used something like Nyquil or Vicks Formula 44. And if the implication of what I’m saying here is not obvious enough, let me be even more direct; no one buys the cold medicine excuse, so don’t make things worse by trying that one. This very situation points to the uncomfortable yet undeniable fact that most probation violations are solid, meaning that they are not based upon false allegations. Whether you’re violated because you tested positive for something, missed a test, picked up a new charge, or did not complete something you were ordered to do, it is really only in relatively few, special cases that the whole allegation is just plain wrong.
I can safely say this: Unless you have a “special case,” you’re going to need a special lawyer. Even if you are completely innocent of having violated your probation, you can’t afford to hire some bargain lawyer to stand next to you and mumble excuses; you need a clear, dynamic and sharp communicator to explain to the Judge how the probation officer has it all wrong. And when you actually have violated some condition of probation, which, in the real world of probation violation charges, is more often than not, it becomes imperative to convince the Judge to give you another chance. Here, you need to step up and hire a lawyer who clearly stands out from the pack. It is my intention to be direct and honest here, so let’s get to it…
Sure, I have handled plenty of probation violations where a person has been wrongly accused, but the overwhelming majority of cases I have handled, and that I see in court, involve a person who has either done something that he or she wasn’t supposed to do, like test positive for alcohol or drugs, or failed to do something that was ordered, like complete counseling or community service. It is in this situation that you must hire the most well spoken lawyer you can find. Whatever else, you won’t get that with a court-appointed attorney, nor will you find that level of skill for a cut-rate price. The bottom line is that you are spending your money on someone whose primary task is to be persuasive enough to keep the Judge from sending you to jail, or otherwise “hammering” you.
This is not to say you should get taken to the cleaners and pay too much. And for what it’s worth, I have seen plenty of overpriced lawyers stand next to their clients and do nothing better than an average job in a probation violation. This is important enough to repeat: You need to find a lawyer who is dynamic. Of course, I think that describes me, but if you’re reading this somewhere outside of the Metropolitan Detroit area (meaning outside of Wayne, Oakland and Macomb counties, and those other counties nearby), I can’t help you anyway, because I only practice in the local, Metro Detroit area courts, so take this advice to heart. It doesn’t matter if you’re referred to some lawyer who has won 10 murder cases in a row; if he or she is not articulate, captivating and charismatic, then you are almost certainly wasting your time and your money. When you’re standing in front of the Judge for a probation violation, all the “legal” skill in the world is decidedly secondary to the ability to persuade. Specifically, this means being able to persuade the Judge to NOT put you in jail.
Remember, probation is an alternative to jail. When you have a problem complying with whatever the Judge has ordered as part of your probation, then the other “alternative” (jail) is the next logical choice. Getting locked up isn’t just on the menu in a probation violation, it’s the special of the day! Accordingly, the lawyer you need must be articulate, charismatic and persuasive. You need the kind of lawyer that could pull up to an Eskimo village with a sled full of air-conditioners and sell them all in the middle of winter. And if you think this is just hyperbole, ask yourself, what kind of punishment is the Judge likely considering when you step up in front of him or her for having violated your probation? The Judge will almost certainly remind you that your probation was handed out as an alternative to incarceration. It’s not as if he or she could pick from 4 viable options like jail, probation, gift certificates or tickets to Disney World; strike the last 2 and what you have left is the full catalog.
As I noted earlier, you’ll pay for this level of help, but when shopping for a lawyer, never be mislead into thinking that price alone means anything. Cheap is cheap, but you have to find the one lawyer, regardless of price, who really stands out to you. If you’re not “charmed” by what some lawyer has written, or the helpfulness of the staff person who answers the phone, then you shouldn’t expect much better from the lawyer him or herself. Nor, if you call the office and talk to some dud, are things likely to translate into any real help when you’re standing in front of the Judge, either. If you call my office, for example, whoever answers the phone is dynamic, friendly, and will be able to answer some of your questions right off the bat.
In terms of producing the very best results in a probation violation situation, skill is a quality that can be most accurately described as the refined combination of talent and experience. Even though a probation violation may not turn on some complex point of the law, knowing how to manage perception and time are key ingredients in producing a better outcome. In my case, because I keep my criminal practice local, I am familiar with the courts and Judges before whom I appear. In the world of successful investing, knowing how not to lose money is every bit as important as knowing how to make it. In fact, billionaire Warren Buffet’s first 2 rules of investing are, number one, don’t lose money, and, number two, see rule number one. In the context of a probation violation, certain approaches that may work wonderfully with one Judge can spell disaster with another.
Over and above everything I’ve outlined above, there is something else, something that you can’t really explain or define, that enters into the picture. It’s that “gut feeling” you get as you do your homework and look for a lawyer. If I were looking for a lawyer, I would evaluate his or her “voice” in the information he or she provides online. That’s a starting point. Does he or she explain things, or just use worn out phrases like “tough” and “aggressive”? It matters to me how the phone is answered when I call a business. In my office, whoever picks up the phone can answer some of your questions right then and there. If I’m going to be perfectly honest here, I would be wary of any operation that has its phones answered by someone who sounds disinterested. You can tell, sometimes, that a place has a high turnover of its employees. Similarly, any call during regular business hours that goes to voicemail, or is answered by the lawyer him or herself raises a red flag in my mind. Probably the best piece of simple advice I can give anyone looking to hire a lawyer, and this applies in every context, is to do your homework. Spend some time and put in some effort. Read articles and call offices. Keep these things in mind as you check around, and make sure you call my office to get my take on your situation. We’re open Monday through Friday, from 8:30 a.m. to 5:00 p.m., and can be reached at 586-465-1980.